1 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE 2 AT KNOXVILLE FILED 3 MAY 1997 SESSION APRIL 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk WILLIE BACON, JR., ) 6 ) 7 Appellant, ) No. 03C01-9605-CR-00203 8 ) 9 ) Hamilton County 0 v. ) 1 ) Honorable Douglas A. Meyer, Judge 2 ) 3 STATE OF TENNESSEE, ) (Post-Conviction) 4 ) 5 Appellee. ) 6 7 8 For the Appellant: For the Appellee: 9 0 Ardena J. Garth Charles W. Burson 1 District Public Defender Attorney General of Tennessee 2 and and 3 Donna Robinson Miller Michael J. Fahey, II 4 Assistant Public Defender Assistant Attorney General of Tennessee 5 Suite 300, 701 Cherry Street 450 James Robertson Parkway 6 Chattanooga, TN 37402 Nashville, TN 37243-0493 7 8 William H. Cox, III 9 District Attorney General 0 and 1 C. Leland Davis 2 Assistant District Attorney General 3 City-County Building 4 Chattanooga, TN 37402 5 6 7 8 9 0 1 OPINION FILED:____________________ 2 3 4 AFFIRMED 5 6 Joseph M. Tipton 7 Judge 8 9 0 1 2 3 4 5 OPINION 6 7 The petitioner, Willie Bacon, Jr., appeals as of right from the Hamilton 8 County Criminal Court’s denial of post-conviction relief after an evidentiary hearing. He 9 contends that he is entitled to post-conviction relief because the reasonable doubt and 0 malice instructions given at his trial violated his due process and equal protection rights 1 and because he received the ineffective assistance of counsel. We disagree and affirm 2 the judgment of the trial court.

6 3 4 In 1989, the petitioner was convicted of first degree murder and received 5 a sentence of life imprisonment. This court affirmed his conviction. State v. Willie 6 Bacon, Jr., No. 1164, Hamilton County (Tenn. Crim. App. Aug. 4, 1992), app. denied 7 (Tenn. Dec. 14, 1992). The petitioner filed the present petition for post-conviction relief 8 on May 13, 1994.

6 9 0 A transcript of the petitioner’s trial is the only evidence that was introduced 1 at the evidentiary hearing on his post-conviction petition. At the hearing, the petitioner’s 2 attorney argued that the malice and reasonable doubt jury instructions given at the 3 petitioner’s trial violated his constitutional rights. She also argued that the petitioner 4 received the ineffective assistance of counsel because his trial counsel failed to object 5 to the state’s closing argument, failed to object to the reasonable doubt and malice jury 6 instructions, and failed to challenge the sufficiency of the convicting evidence on 7 appeal.

7 8 9 In its order denying the petition, the trial court stated that the reasonable 0 doubt and malice jury instructions did not violate the petitioner’s constitutional rights and 1 that the petitioner did not receive the ineffective assistance of counsel. Specifically, the 2 court found that the petitioner’s counsel made a tactical decision not to object during

8 3 the state’s closing argument. The court also stated that although the petitioner’s 4 counsel did not challenge the sufficiency of the convicting evidence, this court 5 examined the convicting evidence and concluded that the evidence sustained the 6 conviction.

8 7 8 I. REASONABLE DOUBT JURY INSTRUCTION 9 The petitioner contends that he is entitled to post-conviction relief 0 because the use of the term “moral certainty” in the reasonable doubt jury instruction 1 given at his trial allowed the jury to convict him based on a lower standard of proof than 2 is constitutionally required. We disagree.

9 3 4 The following instruction was given at the petitioner’s trial: 5 Reasonable doubt is not that doubt that may arise from 6 possibility, but is that doubt engendered by an investigation of 7 all the proof in the case and an inability, after such 8 investigation, to let the mind rest easily upon certainty of guilt.

9 9 Absolute certainty of guilt is not demanded by the law to 0 0 convict of a criminal charge, but moral certainty is required as 0 1 to every proposition of proof requisite to constitute the offense.

1 0 2 0 3 This is a correct statement of the burden of proof for criminal trials in Tennessee. See 0 4 Nichols v. State, 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton, 917 S.W.2d 263, 266 0 5 (Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d 364, 366 (Tenn. Crim. App. 0 6 1994). Thus, the instruction did not violate the petitioner’s constitutional rights.

1 0 7 0 8 II. MALICE JURY INSTRUCTION 0 9 Next, the petitioner contends that the trial court's jury instruction regarding 1 0 malice violated his due process rights. See Sandstrom v. Montana, 442 U.S. 510, 99 1 1 S. Ct. 2450 (1979); State v. Bolin, 678 S.W.2d 40, 45 (Tenn. 1984). The trial court 1 2 gave the following instruction at the petitioner’s trial: 1 3 Malice is an intent to do injury to another, a design 1 4 formed in the mind of doing mischief to another.

1 1 5 Malice may be express or implied. Express malice is 1 6 actual malice against the party slain and exists where a person 1 7 actually contemplates the injury or wrong he inflicts. Implied 1 8 malice is malice not against the party slain, but malice in 1 9 general, or that condition of the mind which indicates a wicked, 2 0 depraved, and malignant spirit, and a heart regardless of social 2 1 duty and fatally bent on mischief. Implied malice may be found 2 2 to exist where the wrongdoer did not intend to slay the person 2 3 killed but death resulted from a consciously unlawful act done 2 4 intentionally and with knowledge on the wrongdoer’s part that 2 5 the act was directly perilous to human life. In this event, there 2 6 is implied such a high degree of conscious and willful 2 7 recklessness as to amount to that malignity of heart 2 8 constituting malice.

1 2 9 3 0 As with other issues, the question of malice may be 3 1 decided from direct or circumstantial evidence, or both. It is for 3 2 the jury to decide under all the facts and circumstances of the 3 3 case whether malice was present in the slaying.

1 3 4 3 5 If a deadly weapon is handled in a manner so as to 3 6 make the killing a natural or probable result of such conduct, 3 7 the jury may infer malice sufficient to support a conviction of 3 8 murder in the first degree. But, again, this inference may be 3 9 rebutted by either direct or circumstantial evidence or by both 4 0 regardless of whether the same be offered by the defendant or 4 1 exists in the evidence of the state. . . .

1 4 2 4 3 Malice cannot be inferred from deadly intent only, 4 4 because the deadly intent may be justifiable under the law, as 4 5 where one willfully kills another to save his own life or to save 4 6 himself from great bodily harm and the danger is imminent and 4 7 immediate, or if it were sudden and upon reasonable 4 8 provocation the killing might or might not be manslaughter, but 4 9 it would not be murder.

1 5 0 5 1 You are reminded that the state always has the burden 5 2 of proving every element of the crime charged beyond a 5 3 reasonable doubt. A permissible inference may or may not be 5 4 drawn from an elemental fact from proof by the state of a basic 5 5 fact. However, all inferences permitted to be drawn may be 5 6 rebutted. Such permissive inference does not place any 5 7 burden of proof of any kind upon the defendant.

1 5 8 5 9 6 0 In Sandstrom, the Supreme Court held that an instruction which effectively 6 1 tells the jury that they are to presume the existence of malice, when such is an element 6 2 of the offense, impermissibly shifts the burden of proof to the defendant. Sandstrom, 6 3 442 U.S. at 524, 99 S. Ct. at 2459. However, the trial court in this case did not instruct 6 4 the jury to presume the existence of malice. Taken as a whole, the instruction created 6 5 a permissive inference. See Bolin, 678 S.W.2d at 42-45; see also State v. James

1 6 6 Blanton, No. 01C01-9307-CC-00218, Cheatham County (Tenn. Crim. App. Apr. 30, 6 7 1996), app. pending (holding that a similar instruction did not violate Sandstrom). Thus, 6 8 the instruction did not violate the petitioner’s constitutional rights.

1 6 9 7 0 III. INEFFECTIVE ASSISTANCE OF COUNSEL 7 1 Finally, the petitioner contends that he is entitled to post-conviction relief 7 2 because he received the ineffective assistance of counsel. The petitioner contends that 7 3 his counsel was ineffective for failing to object to the state’s closing argument, failing to 7 4 object to the malice and reasonable doubt instructions that were given at his trial, and 7 5 failing to challenge the sufficiency of the convicting evidence during his direct appeal.

1 7 6 The state counters that the petitioner has failed to demonstrate that his counsel was 7 7 deficient and that he suffered any prejudice from the alleged deficiencies.

1 7 8 7 9 The burden was on the petitioner in the trial court to prove his allegations 8 0 that would entitle him to relief by a preponderance of the evidence.1 Brooks v. State, 8 1 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). On appeal, we are bound by the trial 8 2 court’s findings unless we conclude that the evidence preponderates against those 8 3 findings. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect, 8 4 the petitioner has the burden of illustrating how the evidence preponderates against the 8 5 judgment entered. Id. 8 6 8 7 Under the Sixth Amendment, when a claim of ineffective assistance of 8 8 counsel is made, the burden is upon the petitioner to show (1) that counsel's 8 9 performance was deficient and (2) that the deficiency was prejudicial in terms of 9 0 rendering a reasonable probability that the result of the trial was unreliable or the 9 1 proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

1 9 2 Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 369-72, 113 S. Ct. 838, For post-conviction petitions filed after May 10, 1995, petitioners have the burden o f proving factual allegations by clear and convincing evidence. T.C.A. § 40-30 -210(f).

1 9 3 842-44 (1993). Our supreme court has also applied this standard to the right to counsel 9 4 under Article I, Section 9 of the Tennessee Constitution, State v. Melson, 772 S.W.2d 1 9 5 417, 419 n.2 (Tenn. 1989), and to the right to appellate counsel under the Fourteenth 9 6 Amendment. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995); see Evitts v. 9 7 Lucey, 469 U.S. 387, 105 S. Ct. 830 (1985).

1 9 8 9 9 The petitioner contends that his attorney was deficient for failing to object 0 0 to the following remarks the prosecuting attorney made during the state’s closing 0 1 argument: 0 2 Mr. Bacon would have you believe that he simply 0 3 forgot, I guess. I guess it’s what you might term selective 0 4 amnesia. “Oh, yeah, I remember when he assaulted me. 0 5 Oh, yeah, I remember falling through the door. Oh, yeah, I 0 6 remember dropping the knife. Oh, yeah, I remember 0 7 running away. Oh, yeah, I remember getting in the car.”

2 0 8 Whoa, wait a minute. What about the 35 stab wounds? Oh, 0 9 is this the defense? Yes, I committed first degree murder, 1 0 but now I’ve forgotten about it. Okay, so you committed first 1 1 degree murder and you’ve forgotten about it.

2 1 2 The trial court found that the petitioner’s attorney acted within the range of competence 1 3 demanded of defense attorneys when he made a tactical decision not to object to these 1 4 remarks. We agree with the trial court’s assessment. The petitioner has failed to 1 5 demonstrate that these remarks were improper or that he was prejudiced by them.

2 1 6 1 7 We also disagree with the petitioner’s contentions that his counsel was 1 8 ineffective for failing to object to the reasonable doubt and malice jury instructions that 1 9 were given at his trial. As previously discussed, the instructions given at the petitioner’s 2 0 trial were proper.

2 2 1 Finally, the petitioner contends that his counsel was ineffective for failing 2 2 to challenge the sufficiency of the convicting evidence during his direct appeal. The 2 3 state counters that the petitioner’s counsel acted competently when he made a tactical 2 4 decision not to challenge the sufficiency of the evidence. The state also argues that the

2 2 5 petitioner has failed to show that he was prejudiced by his counsel’s failure to present 2 6 the sufficiency of the evidence on appeal.

2 2 7 2 8 We agree with the state that the petitioner has failed to show that he was 2 9 prejudiced by his counsel’s failure to challenge the sufficiency of the convicting 3 0 evidence. When viewed in the light most favorable to the state, see State v. Cabbage, 3 1 571 S.W.2d 832, 835 (Tenn. 1978), the proof at trial showed that the petitioner asked a 3 2 friend to drive him to the victim’s home. Before they left for the victim’s house, the 3 3 petitioner changed clothes. The petitioner “tucked” his clothes in a manner that 3 4 indicated that he had something concealed under his clothes. After arriving at the 3 5 victim’s house, the petitioner entered the house, where he stabbed the victim during a 3 6 struggle. The petitioner continued to stab the victim after the victim exited the house.

2 3 7 The petitioner stabbed the victim a total of thirty-five times, killing him. The proof at trial 3 8 indicated that the petitioner killed the victim as punishment or revenge related to an 3 9 unsuccessful drug transaction.

2 4 0 4 1 Based on the proof presented at trial, the jury was justified in concluding 4 2 that the petitioner was guilty of first degree murder. Thus, the petitioner has failed to 4 3 demonstrate that his attorney was deficient for failing to challenge the sufficiency of the 4 4 evidence on appeal and has failed to demonstrate that he suffered any prejudice from 4 5 his attorney’s decision not to raise the issue.

2 4 6 4 7

2 4 8 In consideration of the foregoing and the record as a whole, we affirm the 4 9 judgment of the trial court.

2 5 0 5 1 Joseph M. Tipton, Judge 5 2 5 3 5 4 CONCUR: 5 5 5 6 5 7 5 8 5 9 Joe B. Jones, Presiding Judge 6 0 6 1 6 2 6 3 6 4 6 5 Curwood Witt, Judge 6 6